Saturday, June 20, 2009

So the Ontario Human Rights Commission is tormenting the Ontario Progressive Conservative Party again. It was over 25 years ago that internal party dissatisfaction with the OHRC first bubbled to a boil. I was at the OPCCA Annual Meeting in my capacity as Past President, soon to be Past Past President, innocently minding my own business listening to a typical policy session. Suddenly democracy broke out, and there was a motion on the floor deploring the latest power grab of the Human Rights Establishment as manifested in a package of amendments being put forth by the Bill Davis government. The motion called for the abolition of the OHRC and it looked like it was going to pass. Tom Long, incoming president, grabbed me and asked me to get up and ask that the motion be withdrawn and that a committee be appointed to investigate the amendments and the Code and come forth with recommendations to be made to the government. It was a honour back then, to be someone who was able to stand off and get the hard men to back off a bit when the leadership wanted it done but not to do it itself. In the great tradition of Past President as sometime doer of dirty work and hatchetman.

That committee turned out to be, aside from me, quite a collection of talent, kind of like when in baseball you have one of these minor league teams that turns out 25 years later to have a passel of Hall of Famers. Tom, Tony Clement, Alister Campbell and Lynn Golding for starters.

The discontent with the OHRC became quite substantial. Tony Clement later asked me to debate Tom on the question of whether the OHRC should be abolished entirely at the OPCYA Annual Meeting, with me taking the pro-retention side. I gave a very flat performance, partly because I wasn't sure I was debating on the right side.

It turned out that nothing could deter the government from its course. How the OHRC survived the Harris years unscathed I do not know, but that it did was a major mistake. The contents of the Common Sense Revolution were the entire store of the party's intellectual capital under Harris, and it spent its time in government depleting it.

The current debate over OHRC in the leadership contest, like previous ones, seems to pit the virtues of courage and prudence against each other. Like the National Post editorial board when it first discussed the issue (it has since endorsed Tim Hudak), I am of two minds about this. Political parties need to be elected in order to implement their social visions, and they should think very hard before adopting policies that threaten to blast away their support. The London Free Press poll being disseminated by Christine Elliott is a very effective weapon. On the other hand if political parties have no social vision there is no point electing them. And make no mistake, anyone who approves of the current human rights regime is not a conservative and Ontario would be better off defeating a party led by such a person.

The crucial facts are these: Ontario's human rights regime is not a neutral and fair mechanism to promote am objective conception of human rights and fairly adjudicate claims that these rights have been violated. It is an entrenched and potent adjunct of left-wing political ideology, striving to pull the province's politics and discourse steadily to the left, changing its legal norms constantly without the inconvenient necessity of gathering the public support to change the law in the direction it wants by amendment.

Just look at the stated policy of the Liberals' supposed attempt to bring the OHRC in line, the new Ontario Human Rights Tribunal. Its mission commits it to "strive [to] remain responsive to an evolving understanding of human rights and discrimination". That is an open commitment to a constantly changing law without parliamentary sanction. To a world where behaviour that is legal today gets you dragged into court tomorrow, because the law has "evolved" and you never got the memo. It makes the OHRT a continuing constitutional convention, populated overwhelmingly by delegates from the Left human rights establishment. The great majority of its members have resumes showing they have been saturated and steeped in Left human rights ideology.

On the other hand...although as a Fort Erie boy myself I have a home team attachment to Tim Hudak, there's no doubt his human rights policy is half-baked. In particular he's 180 degrees off with the suggestion of a specialized court of "specially trained" judges. Specially trained by whom, in what? Any training that is likely to take place in the foreseeable future would be conducted by the same human rights establishment that is the cause of our present problems. What we need is a specially untrained tribunal, so that human rights matters are heard by people with expertise in the law generally just as contract cases are heard by courts not specially trained in the law of contract, tort cases are heard by courts not specially trained in the law of tort, and constitutional cases are heard by judges not specially trained in the law of the constitution. We need for human rights decisions to be made by professional adjudicators, not professional ideologues. Eliminating the OHRT would also put a crimp in the lifestyle of the human rights establishment, which has long had the ability to sustain and compensate itself by getting its members appointed as human rights adjudicators. The OHRT at the moment is a kind of human rights establishment Senate. And its new members are appointed from among people nominated by -- themselves. What a wonderful way of perpetuating an ideology.

A half-baked policy doesn't need to be discarded; it just needs to be put back into the oven.

Conservatives are going to need to develop an uninstitutionalized human rights intelligentsia. This will require Tories to do something they are normally averse to do -- first immerse themselves in the current human rights culture, so as to better know one's enemy. Conservatives are used to have their experience with HRCs come through being hauled before them to be asked to grovel and apologize for saying that adherents of Islam are Muslims, or some similarly outrageous statement of hatred. But in the United States conservatives like Abigail Thernstrom and Peter Kirsanow, members of the U. S. commission on civil rights, have become credentialed human rights experts. It's a dirty job but someone has to do it.

I won't predetermine the conclusions of this hypothetical project of mine that is going to reenvision human rights policy for the twenty-first century. But I'll throw out a few ideas. The Code needs to be rewritten from top to bottom, with all its language carefully designed to rein in wandering tribunals, be they administrative or judicial. Right from the Preamble, where our human rights law needs to be decoupled from the U. N. Declaration of Human Rights and its other fatuities and reattached to our own Anglo-Canadian traditional understandings of rights. When we're in power, human rights reform can't be something we undertake once a generation or so. Conservative governments need to monitor human rights decisions constantly, moving immediately to amend legislation as soon as an outrageous decision occurs. Ideally the amending legislation should be ready to be introduced the day after the period for appeal of an outrageous decision is over.

And a way out of our dilemma might be the creation of a statutory tort of discrimination, something that was on its way to evolving at common law before the proliferation of HRCs choked off its growth. A tort of discrimination would fit into the judicial system like any other tort. It would treat breaches of civil rights like other breaches of rights, to be remedied through ordinary actions in tort or contract, rather than making rights breaches objects of continual human-rights-establishment fuelled waves of hysteria. It would place the issue of compensation for such things as mental distress within a pre-existing legal framework.

Back to courage versus prudence -- despite Christine Elliott's boughten poll, I believe that human rights reform can be part of a winning progressive conservative platform. It won't be a major part of it, but it needn't be the rotten plank through which our leader falls to a gruesome electoral death. The problem with Christine Elliott's winnability argument is that professional moderates such as herself who share the attitudes and beliefs of the liberal establishment, with an occasional zany idea like a flat tax thrown in to rope in gullible conservatives, tend not to win elections despite their oh-so-carefully-preserved moderation. Think Stanfield and Clark and Grossman and Tory. It feels terrible to sell your soul when picking a candidate and be rewarded with another four years in opposition.